Appeal from the Judgment of Sentence January 6, 1987 in the Court of Common Pleas of Allegheny County Criminal Division, No. 8605588A
Shelley Stark, Assistant Public Defender, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
Cirillo, President Judge, and Hoffman and Cercone, JJ. Cirillo, President Judge, files a concurring opinion. Judge Hoffman joins in the result reached in Judge Cercone's opinion, and joins President Judge Cirillo's concurring opinion.
[ 372 Pa. Super. Page 136]
This is a direct appeal from the judgment of sentence of January 6, 1987. Appellant Leroy Tillman was sentenced to nine (9) to twenty-four (24) months imprisonment for simple assault.*fn1 On this appeal Appellant argues that trial counsel was ineffective in failing to preserve for appeal errors made in the trial court's instructions to the jury concerning: 1) the definition of bodily injury and 2) the requisite intent for simple assault. In addition, appellant contends his counsel was ineffective for not objecting to the court's admission into evidence of a prior inconsistent statement by a nonparty witness as substantive evidence. Appellant further argues that the verdict was against the weight and sufficiency of the evidence and that trial counsel was ineffective for failing to preserve these arguments for appeal.
The relevant facts of the case are as follows. The charge of simple assault against appellant arose from a shoplifting incident which occurred at a supermarket in Pittsburgh on May 10, 1986. The evidence adduced at trial shows that appellant was observed placing meat items into a plastic bag by the store manager, Mr. Petrelli. Following questioning of appellant by Mr. Petrelli, an elderly female shopper was knocked down while appellant was attempting to flee the store with Mr. Petrelli in pursuit. The victim, Mrs. White, testified at a preliminary hearing that she did not know who knocked her down. Mr. Petrelli was firm in his testimony that it was the appellant who ran into Mrs. White with a shopping cart causing her to fall.
At trial Mrs. White was not called as a witness for the Commonwealth. At the close of the Commonwealth's case defense counsel raised a demurrer to the evidence. He
[ 372 Pa. Super. Page 137]
claimed that the state did not prove bodily injury, as required for a charge of simple assault. The demurrer was denied and appellant presented his case in which he called Mrs. White to the stand. At that time, she testified that Mr. Petrelli the store manager caused her to fall and that she had sustained injuries from the fall. During cross-examination, Mrs. White admitted that she had brought a civil suit against the supermarket for her injuries. Following a trial by jury, appellant was found guilty of simple assault.
Appellant's first contention is that trial counsel was ineffective in failing to preserve for appeal three issues of trial error. We note that the Supreme Court has recently pronounced a two component standard for reviewing ineffectiveness claims:
First, counsel's performance is evaluated in light of its reasonableness if it is determined that the underlying claim is of arguable merit . . . .
Second, we have required that the defendant demonstrate how the ineffectiveness prejudiced him.
Commonwealth v. Pierce, 515 Pa. 153, 157-158, 527 A.2d 973, 975 (1987).
Appellant's first claim of ineffectiveness is that counsel did not object to the court's failure to define "bodily injury" in its instructions to the jury. As to this claim, we find no error. In Commonwealth v. Goins, 348 Pa. Super. 22, 501 A.2d 279 (1985), this court determined that a trial court's failure to define bodily injury was not prejudicial to the defendant who was charged with simple assault. The court held that while "bodily injury" is a legal term, its meaning is comprehensible to laymen without judicial guidance. Id., 348 Pa. Superior Ct. at 24, 501 A.2d at 280. As in Goins, the jury in the present case heard testimony from which it could have concluded that bodily injury occurred. First, witnesses testified that paramedics ...